Troy's former corporation counsel exonerated in lawsuit filed by PBA president - DOCUMENT

TROY -- Former Corporation Counsel David Mitchell was exonerated of any wrongdoing in a decision handed down by U.S. District Judge Mae D'Agostino in a multi-million dollar lawsuit brought against the city by Police Benevolent Association President Bob Fitzgerald.

The decision stated Fitzgerald's claim, which said former Mayor Harry Tutunjian, Police Chief John Tedesco and Mitchell, violated his First, Second, Fourth and 14th Amendment rights, failed to show Mitchell had any personal involvement in depriving him of his rights.

"First, defendant Mitchell did not make the decision to place plaintiff Fitzgerald on paid administrative leave; he simply drafted the order that was sent to the department chiefs pursuant to defendant Tutunjian's request," the decision stated. "Second, in a confidential letter sent to defendant Tutunjian on April 17, 2007, defendant Mitchell again advised defendant Tutunjian that the internal affairs investigation and any criminal investigation that he may wish to pursue should be referred to outside the Police Department."

It continued to say Tutunjian disregarded Mitchell's suggestion, as well as his advice to not place Fitzgerald on administrative leave until the internal affairs investigation was completed.

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"Considering these undisputed facts, the court finds that defendant Mitchell acted in an objectively reasonable manner and is, therefore, entitled to qualified immunity," the decision read.

Mitchell said he had maintained his innocence since the allegations came out and the court's ruling agreed with him.

"The decision and order speaks for itself and I thank the court for its ruling," Mitchell said. "From the inception of the case, I asserted my lack of involvement in any alleged violation of the plaintiff's constitutional rights and the court's ruling validates my position."

Mark Walsh, the attorney representing Fitzgerald and the PBA, said they have not yet considered what course of action they would take.

"I haven't read the complete decision yet but I trust the judge made the best decision possible in its entirety," Fitzgerald said.

The Decision, dated Nov. 28, went on to say it did find sufficient evidence of retaliation by Tutunjian and Tedesco, who was assistant chief at the time, for comments made by Fitzgerald at public meetings and to the press criticizing the need for residency requirements for police officers. The decision, though, specified it was done while Fitzgerald made clear he was off-duty and as PBA president.

The residency requirement had become an issue since it is rarely enforced. But when a list for potential officers to be promoted to the rank of sergeant was released, Sgt. Steve Seney, who was then an officer, was accused of sending an anonymous letter informing higher ups which candidates should be disqualified because of the requirement.

Several officers became enraged by Seney's actions, making threats against him out of ear-shot. Fitzgerald told Tedesco as well as Seney about the threats, which Seney perceived as a threat and made a complaint against Fitzgerald.

While the court said it did not find any evidence of Fitzgerald threatening Seney, as well as an internal affairs investigation which stated the allegations were "unfounded," Tutunjian and Tedesco still placed Fitzgerald on administrative leave with pay.

Thomas O'Connor, representing Tutunjian, Tedesco and Mitchell, said he was pleased with Mitchell's dismissal from the case as well as some of the charges brought against the city and is reviewing the other charges.

"The three he did not dismiss, we will be reviewing portions of the decision for discussion and determine what, if anything, should be done in respect to those," O'Connor said.

Tedesco also said that he was pleased with the court's decision, but said he believed a full dismissal was necessary.

"I continue to maintain my innocence and look forward to having the matter resolved in a court of law," Tedesco said.

While some of the charges were dismissed by the judge, Fitzgerald said the crux of his lawsuit was upheld by the court and said they are ready to proceed to trial.

"My opinion is that I have a federal judge agreeing with the charges brought forward. There's vindication right there," Fitzgerald said. "We are court ready."